Over the past 20 years, same-sex marriage has exploded. Initially, it was a “hot potato” issue that politicians shied away from and only the courts would touch, though in more recent years voters and state legislators have brought same-sex marriages into the mainstream.

Gay Marriage and Federal Law

In 1996, as a reaction to Hawaii's pending legalization of same-sex marriages, Congress passed the Defense of Marriage Act (DOMA), which codified two provisions into federal law:

"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife." 1 U.S. Code §7. This means that the federal government will not recognize any marriage other than one between one man and one woman, regardless of whether a gay/lesbian couple is legally married under the laws of their state.”

“No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship. 28 U.S. Code §1738C. This section therefore authorizes states to not recognize as valid same-sex marriages performed elsewhere.”

In recent years, DOMA has been rejected by several federal district and appellate courts, and in June 2013, the U.S. Supreme Court issued a decision in United States v. Windsor overturning §3 of DOMA which barred federal benefits to same-sex couples who are legally married under state law.

Colorado Same-Sex Marriage Developments

In 2006, Colorado voters passed, by 55-45, Amendment 43, which added a new section 31 to Article II of the Colorado Constitution, reading: “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.”

C.R.S. 14-2-104(1)(b) similarly prohibits same-sex marriages between gay or lesbian couples, by specifying that a marriage is between one man and one woman.

There have been several attempts in recent years to create additional protections for same-sex couples, starting in 2006. The same year voters defined marriage as a male/female union, they defeated, by a narrower 53% to 47%, a ballot initiative which would have authorized domestic partnerships (a precursor to civil unions, but much more limited).

In 2009, the legislature enacted the Colorado Designated Beneficiary Act which, like a power of attorney, would effectively let a couple contract to hold property jointly, make end-of-life decisions, etc. Notably absent from this first step, however, is the right to be covered by health insurance, owing obligations to the other (such as maintenance), and therefore, a dissolution process to end such a contract. For more information, see Designated Beneficiary Agreements in the Colorado Divorce & Family Law Guide.

Until 2013, a couple with an out-of-state civil union or same-sex marriage could not dissolve their relationship in Colorado, because C.R.S. 14-2-104(2) does not recognize a valid a same-sex marriage performed outside of Colorado. However, with the enactment of the civil union statute, such marriages are treated as civil unions here, and may be dissolved under Colorado’s Uniform Dissolution of Marriage Act. For more information, see the Dissolving a Civil Union article in the Colorado Divorce & Family Law Guide.

In May 2012, a bill to establish civil unions in Colorado in 2012 died on procedural grounds, even though it had majority support in the Colorado legislature. Finally in 2013, Colorado passed the Colorado Civil Union Act which gives same-sex couples most of the rights of a married couple under state law (except for joint tax filings), but no federal rights thanks to current federal law.

In 2013, Colorado finally enacted the Colorado Civil Union Act, which creates civil unions and grants to same-sex partners most, but not all, of the rights of married couples. For more information, see the Colorado Civil Unions article in the Colorado Divorce & Family Law Guide.

More Information

Wikipedia has an exhaustive article on the Defense of Marriage Act, including its legal challenges.

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